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Complaint of defamation by colleagues can be a qualifying ‘whistleblowing’ disclosure

Makbool Javaid
dismissal

One of the ‘whistleblowing’ disclosures qualifying for protection under S.43B of the Employment Rights Act 1996 is one tending to show a failure to comply with any legal obligation. But can a complaint by an employee that others are falsely blaming him for breaches of confidentiality, of such seriousness that he has to clear his name, qualify under that provision? “Yes” said the EAT in Ibrahim v HCA International Ltd because the provision is broad enough to include defamation and breach of statutory duty such as those contained in the Defamation Act 2013. However, under S.43B, a worker also has to show that he or she believed that the disclosure was in the public interest. Here, Ibrahim did not have a subjective belief in the public interest element of his disclosure – his concern was only that false rumours had been made about him and he was seeking to protect his personal interest. So, while Ibrahim met one part of the test, he had failed another, and the disclosure was not protected.  


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